A guardianship is a legal relationship created when a person or institution named in a will or assigned by the court to take care of minor children or incompetent adults. Sometimes called a conservatorship. To become a guardian of a child either the party intending to be the guardian or another family member, a close friend or a local official responsible for a minor’s welfare will petition the court to appoint the guardian. The guardianship of a minor remains under court supervision until the child reaches majority at 18. The judge does not have to honor the request when someone is named in a will as guardian of one’s child in case of the death of the parent, it is construed as a preference, but is usually honored. The term “guardian” may also refer to someone who is appointed to care for and/or handle the affairs of a person who is incompetent or incapable of administering his/her affairs. Guardians must not benefit at the expense of those they care for (wards), and in many cases are required to make accountings to the court on a periodic basis. In some courts, a guardian may be reimbursed for attorney fees related to the guardianship. Court rules regarding accounting of expenses and requirements of guardians vary and local court rules should be consulted.
In some states, if the child is a certain age or older, the court must appoint the person nominated by the child unless the court finds the nomination contrary to the child’s best interest. The court may not appoint a person against whom the child has filed a written objection. In adult guardianships, the judge is often required to make a reasonable effort to consider the preference of the person with a disability in selecting the guardian. The judge typically does not have to follow the person’s wishes, but must give due consideration to the preference of the person with a disability. Laws vary by jurisdiction, so local laws should be consulted for specific requirements in your area.
A guardianship of a child takes away the parents’ right to make decisions about their child’s life. However, it does not permanently terminate parental rights. This means that although the guardian now has custody and is responsible for raising the child, the parents are still the child’s legal parents.
The court can order a guardian to let the parents visit or contact the child, but the court may also put limits or other conditions on the visitation, such as requiring that any visitation be supervised. The time and frequency of parental visitation is often is up to the guardian (or the court) to decide. Parents may, in some cases, regain custody of their child in the future if the court determines the guardianship is no longer in their child’s best interests.
Local laws vary, but many courts require certain interested parties to be served with notice of guardianship hearings. Such notices regularly have to be legally served upon the person, with a sworn statement of the person making the service later returned to the court as proof of such service. In some cases, the court may waive the notice requirements. Local court rules should be consulted to determine applicability in your area.
At least one state provides for an emergency guardianship proxy. In Massachusetts, the law allows a parent or guardian, without court intervention, to appoint a short-term emergency proxy of a minor. It must be done by a written instrument signed in front of at least two witnesses who are 18 years of age or older. The proxy must also sign the instrument although he or she is not required to sign at the same time as the parent or guardian. An Emergency Proxy is prohibited if there is another parent who is willing and able to care for the minor unless that parent consents to the appointment by signing the written instrument of appointment.
Maine’s highest court has held that its probate courts have the power to grant full coguardianships to an existing parent and another person, thus enabling gay and lesbian parents to create a legal relationship between their children and the children’s parents. Whether coguardians may be appointed when one is a natural parent is an issue decided by state law, which varies by state.
Temporary guardianships are generally granted by the courts to achieve a specific purpose for a certain amount of time. Once the purpose is accomplished, the guardianship is terminated.
A plenary guardian is a person appointed by the court with the power to exercise all legal rights and duties on behalf of a ward after the court makes a finding of incapacity. It is a guardian of both the person and the estate.
State statutes define mental and physical disability. However, typically, such disability or incapacity involves severe and long-term conditions that impose great limitations upon individuals’ ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others. Such a disability also reflects the necessity for a combination of treatments and services.
Guardianship for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the ward. They are limited as much as is reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration. Also, wards are allowed to do as much of their own care giving as is physically and mentally possible.
The guardian will be granted only those powers necessary to accomplish for the ward what the ward cannot accomplish independently. These powers may include assuring the availability and maintenance of care for the ward, making sure that educational and medical services are maintained and adequate, and submitting updates to the court of the ward’s condition. These court updates describe the ward’s living situation, status of mental and physical health based upon medical examinations and official records. This provides a list of services being received by the ward, and describe services rendered by the guardian, account for the ward’s monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian’s duties.
Following is an example of a state law dealing with incapacitated person:
Tex. Prob. Code § 601 (14) “Incapacitated person” means:
(A) a minor;
(B) an adult individual who, because of a physical or mental condition, is substantially unable to provide food, clothing, or shelter for himself or herself, to care for the individual’s own physical health, or to manage the individual’s own financial affairs; or
(C) a person who must have a guardian appointed to receive funds due the person from any governmental source.